The Origins of Due Process in India: The Role of Borrowing in Personal Liberty and Preventive Detention Cases

45 Pages Posted: 1 Aug 2013

See all articles by Manoj Mate

Manoj Mate

University of California, Irvine School of Law; Harvard Law School

Date Written: May 1, 2010

Abstract

This paper explores the origins of the anomalous development of substantive due process in the Indian Supreme Court in the area of personal liberty and preventive detention cases, given that the framers of the Indian Constitution deliberately chose to omit a due process clause to preclude substantive due process jurisrpudence. It proceeds to examine the important role of judicial "borrowing" in this process, in which justices relied on foreign precedent and legal scholarship, as well as international legal norms, to help overcome constitutional constraints. The paper analyzes personal liberty and preventive detention cases in order to gain a better understanding of the processes by which judges employ borrowing to advance "universalist" (versus particularist) legal norms, and then seeks to generalize from the Indian case by proposing a theoretical approach for understanding how judicial borrowing can be understood as a dynamic process that changes over time in new developing constitutional systems.

Suggested Citation

Mate, Manoj, The Origins of Due Process in India: The Role of Borrowing in Personal Liberty and Preventive Detention Cases (May 1, 2010). Berkeley Journal of International Law (BJIL), Vol. 28, No. 1, 2010, Available at SSRN: https://ssrn.com/abstract=2302815

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